Battles in the Wellness War

By: Paul Ebeltoft

Have you heard? Wellness is in fashion. Weight Watchers® has an entire division devoted to finding ways for employers to control healthcare costs by having employees eat more carefully. The Affordable Care Act “creates new incentives … to promote employer wellness programs and … healthier workplaces.” Employers and employee are responding nation-wide.

A healthy lifestyle is not only its own reward. The Department of Labor’s proposed rules for “health-contingent wellness programs” specifically permit an employer to hand out cash to employees who do not use, or decrease their use of, tobacco, or who achieve a specified cholesterol level or weight. What does the employer get? Well, they get cash too – hundreds, thousands or millions of dollars in savings on health insurance premiums. In addition, employers save when lost time for illness and treatment decreases and gain as their newly fit workforce works longer and harder.

With these stakes, the wellness revolution could be the most widespread war that America has ever waged. That’s good. Right?

The Issue

With this big of a carrot, can a stick be far behind? Imagine your company’s owner coming to you. She says:

“I have purchased health club memberships for employees. I have sponsored smoke-outs. I have stocked the break room with health snacks and drinks. But look around! More of our workers are obese, or at least overweight, than ever before. Our health insurance premiums are skyrocketing and the number of sick-day absences is at a record.

I want to send a letter to our employees requiring each to submit detailed health profiles to our health insurance carrier. I want records of weight, body fat levels, blood glucose and other vital statistics. If anyone doesn’t do this, but they still want to be on our company health insurance plan, we are going to fine them $50 per month for each month of noncompliance. For those who comply, I’ll pay them $600 per year if they can show improved statistics or sustained levels within norms. Can I do this?”

Is this example far-fetched? No. Except for the incentive for improvement, it is exactly what the national CVS Pharmacy is requiring of their employees by May 1, 2014. Pressure to do the same could literally be coming to a business near you.

Your Employer want’s HR’s response. What should it be?

When faced with a sweeping inquiry like this, an HR professional should break down the issue into manageable pieces. Ask, “what is the key departure from the norm?” In this example, the unusual event is requiring all employees to submit medical information for the company’s benefit.

The next step is to ask, “what laws might govern this situation?” When an employer asks a current employee to submit health records, issues of confidentiality and the requirements of the Americans with Disabilities Act (ADA) should spring immediately to mind. For this article, I will address only the ADA.

The general rule is that an employer may make disability related inquiry of a current employee or request medical information only if the inquiry is job-related and consistent with business necessity. The EEOC has a well-developed history on what the phrase “job-related and consistent with business necessity” means in the workplace. The employer must first have a “reasonable belief based on objective evidence” that an employee will not be able to perform fully an essential job function or will pose a direct threat to the employee or others. The ADA is definitely applicable.

HR’s final analysis is determining whether the plan will violate or risks violation of the identified law. In the example, it seems that there is a risk of violation, although no court to my knowledge has yet ruled on such a plan. The vice of the well-intentioned idea is that, even though your CEO has some evidence that unhealthy employees may be unable to consistently perform at required work-levels, the evidence is not employee specific. The evidence is also not determinative. That is, there is no causal link between observed obesity in the workforce to record sick days claimed. At this level of observation, the sick days could be due to a flu outbreak. So, the standard for “reasonable belief based on objective evidence” is not met. Further, your CEO’s plan requires everyone to submit medical information, regardless of whether individuals in that group are healthy or at death’s door and regardless of whether individuals in that group are able to perform the essential duties of their job or not. The likelihood of violation of the ADA is fairly high in the example given.

We will know whether my speculation is correct, as many commentators feel that employees will test the CVS plan in court. Stay tuned.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@eskgb.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the April, 2013 Southwest Area Human Resource Association newsletter.